Idaho Conservation League v. Bonneville Power Administration, 826 F.3d 1173

Background

Albeni Falls Dam (managed by Army Corps, BPA, and Bureau of Reclamation) has historically been operated to balance flood control, power generation, navigation, and wildlife; Lake Pend Oreille is its reservoir.
From dam completion through the early 1990s, the Corps sometimes fluctuated winter lake levels to generate power; beginning in 1997 the Corps adopted a winter policy of holding lake levels constant to protect kokanee salmon.
In 2011 BPA and the Corps issued an Environmental Assessment (EA) adopting “flexible winter power operations,” restoring the Corps’ discretion to store and release water in winter (allowing up to ~5 feet of fluctuation) and concluded no Environmental Impact Statement (EIS) was required.
Petitioner (Idaho Conservation League) challenged the decision under NEPA, seeking an order requiring BPA to prepare an EIS; this court has original jurisdiction under the Northwest Power Act.
The EA acknowledged the spread of an invasive plant (flowering rush) as new information but did not prepare a supplemental EIS addressing year‑round dam operations; petitioner raised that issue but only fleetingly and primarily challenged the EA approving flexible winter operations.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether agencies’ adoption of flexible winter operations required preparing an EIS under NEPA	Reverting to multi‑foot winter fluctuations is a major federal action with significant environmental impacts (so an EIS is required)	The decision merely returns to operational flexibility within the range historically available; it does not change the status quo and thus no EIS is required	The court held no EIS required; the change is within the project’s historic operational range and not a major new action
Whether the 1997–2011 period of steady winter levels altered the operational status quo such that reverting is a major change	Steady levels since 1997 made current operations the status quo; reverting is a new, long‑term shift	Historic practice (pre‑1997 fluctuations, EAs and RODs contemplating both approaches, and retained discretionary authority) shows no change to the underlying status quo	The court held the 1997–2011 practice did not convert historical flexibility into a permanently different baseline; reverting is consistent with the status quo
Whether the EA’s conclusion of only incremental impacts (e.g., on flowering rush) was arbitrary	EA arbitrarily limited analysis to incremental effects and ignored need for a supplemental EIS on flowering rush spread	Because the decision did not trigger an EIS, challenges to the EA’s FONSI are moot; supplemental EIS claim was not timely or properly raised on appeal	The court found these claims moot in this challenge and declined to consider the supplemental‑EIS argument raised only in a footnote; petitioner may raise it later against a different agency action
Whether ongoing operation of the dam itself requires an EIS for each operational decision	The dam’s continued operation significantly affects the environment, so EIS required for this operational change	Routine operational decisions consistent with past conduct do not each require an EIS; only major operational shifts do	The court rejected the argument that every operational decision requires an EIS and stressed practicality: routine, historically consistent decisions need not trigger an EIS

Key Cases Cited

Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105 (9th Cir. 2015) (EA documents the agency’s determination whether an EIS is required)
Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232 (9th Cir. 1990) (operating within the range originally available to an agency does not constitute a major federal action requiring an EIS)
City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975) (‘‘major’’ in NEPA context reinforces but does not have independent meaning from ‘‘significantly’’)
Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008 (9th Cir. 2012) (an EIS is required for a significant shift in operating policy)
San Luis & Delta‑Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) (discussing when changes trigger NEPA’s EIS requirement)
Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (agencies need not issue a supplemental EIS for every new piece of information; requiring one for every change would make decisionmaking intractable)
Laboa v. Calderon, 224 F.3d 972 (9th Cir. 2000) (appellate courts generally do not consider arguments not presented in the opening brief)